Monday, October 24, 2016

Dreadlocks and Title VII’s Definition of Race

Chastity Jones’ employment with the customer service company
Catastrophe Management Solutions (CMS) ended before it began when she refused
to remove her dreadlocks. She charged
discrimination based on race under Title VII, but the trial court dismissed the
case under Fed.R.Civ.P. 12(b)(6). Last
month, the Eleventh Circuit affirmed that decision, issuing an opinion that
broke no new ground as to grooming policies under Title VII, but which raised
substantial questions as to when a grooming policy may implicate the
protections of Title VII.

Grooming requirements, such as the one that CMS relied upon
to reject Ms. Jones’ application, have generally been upheld as
non-discriminatory under Title VII. Title
VII prohibits discrimination based on immutable characteristics such as race,
color, sex and national origin. However,
as the Fifth Circuit explained over 40 years ago:

Equal employment opportunity may be
secured only when employers are barred from discriminating against employees on
the basis of immutable characteristics, such as race and national origin….But a
hiring policy that distinguishes on some other ground, such as grooming codes
or length of hair, is related more closely to the employer’s choice of how to
run his business than to equality of employment opportunity…Hair length is not
immutable and in the situation of employer vis a vis employee enjoys no
constitutional protection. If the
employee objects to the grooming code he has the right to reject it by looking
elsewhere for employment, or alternatively he may choose to subordinate his
preference by accepting the code along with the job.

Before reaching this holding, however, the court paused to
consider whether Ms. Jones’ dreadlocks might be considered as hair texture,
because “[D]iscrimination on the basis of black hair texture (an immutable
characteristic) is prohibited by Title VII, while adverse action on the basis
of black hairstyle (a mutable characteristic) is not." The court cites in support two
non-precedential cases. The Seventh
Circuit sitting en banc, recognized a claim for racial discrimination based on
the plaintiff’s allegation that she was denied a promotion because she wore her
hair in a “natural Afro.” Jenkins v Blue Cross Mut. Hosp. Ins., Inc. The court in Jenkins, however, does not discuss in any detail the distinction
between hair texture and style. The
Eleventh Circuit also cited Rogers v. American Airlines, Inc., which considered the question of cornrows and
noted that

Plaintiff may be correct that an
employer’s policy prohibiting the “Afro/bush” style might offend Title VII and
section 1981. But if so, this chiefly
would be because banning a natural hairstyle would implicate the
policies underlying the prohibition of discrimination on the basis of immutable
characteristics.

(Emphasis added.) Rogers,
however, distinguished the corn-rows from a “natural hairstyle,” which it says
would be protected under Title VII:

An all-braided hair style is an
“easily changed characteristic,” and, even if socioculturally associated with a
particular race or nationality, is not an impermissible basis for distinctions
in the application of employment practices by an employer.

Rogers also noted that multiplecourts
have upheld policies limiting male facial hair despite the fact that
racially-linked differences made compliance with such policies more difficult
for African Americans.

In Catastrophe
Management Solutions, the Eleventh Circuit raised the distinction between
hair texture and hair style seemingly in order to consider whether dreadlocks
were a “natural hairstyle” -- like the Afro in Rogers -- and so protected as a physically immutable marker of
race. It observed,
however, that the plaintiff “did not allege that dreadlocks themselves are an
immutable characteristic of black persons," and concluded that the
fact that “dreadlocks are a ‘natural outgrowth’ of the texture of black hair
does not make them an immutable characteristic of race.” Accordingly, when CMS asked Ms. Jones to cut
her dreadlocks, the court held, they did not intentionally discriminate against
her based on race.

Without question, and as the court noted, “the distinction
between immutable and mutable characteristics of race can sometimes be a fine
(and difficult) [line].” In the end the Eleventh Circuit returned a decision in Catastrophe Management Solutions that was
consistent with previous rulings on Title VII and hair style. Ms. Jones’ dreadlocks were mutable and,
therefore, if she wanted to work at CMS she could choose “to subordinate [her]preference by accepting the [grooming] code along with the job.” Nevertheless, the court helpfully drew attention to a way forward for
persons seeking Title VII protection for what are arguably “natural”
hairstyles.